Citation Nr: 0101226
Decision Date: 01/17/01 Archive Date: 01/24/01
DOCKET NO. 99-12 785 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Evaluation of service-connected dementia due to a history
of meningitis and head trauma, evaluated as 30 percent
disabling.
2. Entitlement to a total rating based on individual
unemployability.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
E. W. Koennecke, Associate Counsel
INTRODUCTION
The appellant served on active duty from June 1957 to July
1960, and from December 1961 to November 1966.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a June 1998 rating decision of the St.
Petersburg, Florida, Department of Veterans Affairs (VA)
Regional Office (RO).
REMAND
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other
things, this law eliminates the concept of a well-grounded
claim, redefines the obligations of the Department of
Veterans Affairs (VA) with respect to the duty to assist, and
supercedes the decision of the United States Court of Appeals
for Veterans Claims in Morton v. West, 12 Vet. App. 477
(1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S.
Vet. App. Nov. 6, 2000) (per curiam order), which had held
that VA cannot assist in the development of a claim that is
not well grounded. This change in the law is applicable to
all claims filed on or after the date of enactment of the
Veterans Claims Assistance Act of 2000, or filed before the
date of enactment and not yet final as of that date.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 7, subpart (a), 114 Stat. 2096, ___ (2000). See also
Karnas v. Derwinski, 1 Vet. App. 308 (1991).
Because of the change in the law brought about by the
Veterans Claims Assistance Act of 2000, a remand in this case
is required for compliance with the notice and duty to assist
provisions contained in the new law. See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114
Stat. 2096, ___ (2000) (to be codified as amended at 38
U.S.C. §§ 5102, 5103, 5103A, and 5107). In addition, because
the VA regional office (RO) has not yet considered whether
any additional notification or development action is required
under the Veterans Claims Assistance Act of 2000, it would be
potentially prejudicial to the appellant if the Board were to
proceed to issue a decision at this time. See Bernard v.
Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92
(July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)).
The appellant contends that his service-connected dementia
warrants a higher evaluation than the 30 percent currently
assigned. He further contends that he is unemployable due to
this service-connected disability. The medical evidence
developed up to this point has focused on the issue of
service connection, rather than a complete evaluation of the
appellant's disability associated with his service connected
meningitis that addresses both the old and the revised rating
criteria for evaluating mental disorders.
Additional development of identified medical evidence is
necessary in order to fulfill the duty to assist the
appellant. The Board is aware that due to his memory
deficits, the appellant has been unable to provide the RO
with specific information regarding past treatment, however,
there are two physicians of record who have provided only
brief statements regarding the issue of service connection,
but not the degree of impairment or unemployability. The RO
should attempt to obtain the treatment records from these
physicians.
This Remand serves as notice of the evidence necessary to
substantiate the claims. The appellant is advised that if he
has any evidence that would support his contentions that a
higher evaluation is warranted and that he is unemployable
due to service-connected dementia, he must submit it.
Accordingly, this case is REMANDED for the following:
1. The RO has previously obtained
statements from Dr. Frank, who indicated
that he had treated the appellant for 10
years. The RO should attempt to obtain
the treatment records from this
physician. The RO should make a second
attempt to obtain any available treatment
records from Dr. Eastridge.
2. The appellant has indicated that he
attends a "special school" that was
arranged through his daughter. The RO
should determine if this program might
have relevant information pertinent to
the appellant's claim for an increased
evaluation or for a total rating based on
individual unemployability. If a
positive determination is reached, the RO
should attempt to develop any relevant
records from this institution.
3. The veteran should be afforded a VA
psychiatric examination. The claims
folder should be made available to the
examiner for review before the
examination. The RO should obtain an
examination report that addresses and
conforms to the rating criteria for
rating mental disorders. The examiner
must make a finding as to unemployability
based solely on service connected
dementia due to a history of meningitis
and head trauma.
4. The General Counsel, in representing
VA before the Court of Veteran's Appeals,
has noted that the RO has duties.
Pursuant to 38 C.F.R. § 3.655, when a
claimant fails to report for an
examination in scheduled in conjunction
with an original compensation claim, the
claim shall be rated based on the
evidence of record. When the claimant
pursuing an original, reopened or claim
for an increase without good cause fails
to report for examination, the claim will
be denied. However, the Secretary must
show a lack of good cause for failing to
report. Further, VA has a duty to fully
inform the veteran of the consequences of
the failure to undergo the scheduled
examination. The RO must comply with all
notification requirements regarding the
duty to report and the failure to report
for examination. The Remand serves as
notice of the regulation.
5. The RO must review the claims file
and ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied. For further guidance
on the processing of this case in light
of the changes in the law, the RO should
refer to VBA Fast Letter 00-87
(November 17, 2000), as well as any
pertinent formal or informal guidance
that is subsequently provided by the
Department, including, among others
things, final regulations and General
Counsel precedent opinions. Any binding
and pertinent court decisions that are
subsequently issued also should be
considered. If the benefit sought on
appeal remains denied, the appellant and
the appellant's representative, if any,
should be provided with a supplemental
statement of the case (SSOC). The SSOC
must contain notice of all relevant
actions taken on the claim for benefits,
to include a summary of the evidence and
applicable law and regulations considered
pertinent to the issue currently on
appeal. An appropriate period of time
should be allowed for response.
6. The veteran is informed that if he
can obtain relevant evidence, that
evidence should be submitted by him to
the RO.
If upon completion of the above action, the claim remains
denied, the case should be returned to the Board after
compliance with all requisite appellate procedures. The
Board intimates no opinion as to the ultimate outcome of this
case.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
H. N. SCHWARTZ
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).